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PROGRESS OF THE LAW, 

As Marked by Decisions Selected from the Advance 

Reports. 



According to a recent decision of the Court of Appeals of 

Kansas, (Southern Department, W. D.,) a person may erect a 

high board fence upon his own land, or on the 

Landowners, division line, though by doing so he interferes 

LightandAir, with the light and air of a building on an adjoin- 

Fence on ■ [ j especially when the fence would not have 

Division Line . & ' t- . { . 

interfered with the light and air, if the building 
had been placed near the centre of the lot ; for the law aims 
to protect each person in the enjoyment of his own property : 
Triplett v. Jackson, 48 Pac. Rep. 931. 

In England, by what is known as the doctrine of ancient 
lights, twenty years uninterrupted enjoyment gives the owner 
of a building a prescriptive right to the light and air coming 
to his windows over the land of another : Act 2 & 3 Wm. 4, 
c. 71 ; Darwin v. Upton, 2 Saund. 175 c, 1786; Younge v. 
Shaper, 27 L. T. N. S. 643, 1872 ; Flight v. Thomas, 8 CI. & 
F. 231, 1 84 1 ; Tapling v. Jones, 11 H. L. Cas. 290, 1865 ; 
Simper v. Foley, 2 J. & H. 555, 1862; Ladyman v. Grave, 6 
L. R. Ch. 763. 1 87 1 ; Kelk v. Pearson, 6 L. R. Ch. 809, 1871 ; 
City of London Brewery Co. v. Tennant, 9 L. R. Ch. 212, 
1873; Mitchell v. Cantrill, 37 Ch. D. 56, 1887; Robson v. 
Edwards, [1893] 2 Ch. 146, 1893; Martin v. Price, [1894] 
1 Ch. 276, 1893 ; Jenksv. Viscount Clifden, [1897] 1 Ch. 694, 
1897. 

But this rule has met with little favor in the United States, 
being rejected by most courts: Ray v. Lynes, 10 Ala. 63, 
1846; Ward v. Neal, 37 Ala. 500, 1861 ; Western Granite 
& Marble Co. v. Knickerbocker, 103 Cal. m, 1894; 
Ingraham v. Hutchinson, 2 Conn. 584, 1818; Goodwin v. 
Hamersley, (Conn.) 36 Atl. Rep. 1065, 1897; Hidley v. 
Security Trust Co., 5 Del. Ch. 578, 1885 ; Turner v. Thompson, 
58 Ga. 268, 1877; Keiperv. Klein, 51 Ind. 316, 1875 ; Stein 
v. Hauck, 56 Ind. 65, 1877 ; Morrison v. Marquardt, 24 Iowa, 
35, 1867 ; Ray v. Sweeney, 14 Bush, (Ky.) 1, 1878 ; Oldstein 
v. Fireman's Bldg. Assn., 44 La. An. 492, 1892; Pierre v. 
Fernald, 26 Me. 436, 1847 ! Cherry v. Stein, 1 1 Md. 1, 1858 ; 
Rogers v. Sawin, 10 Gray, (Mass.) 376, 1858; Richardson v. 

505 



506 PROGRESS OF THE LAW. 

Pond, 15 Gray, (Mass.) 387, i860; Keats v. Hugo, 115 
Mass. 204, 1874; King v. Miller, 8 N. J. Eq. 559, 185 1; 
Hayden v. Dutcher, 31 N. J. Eq. 217, 1879; Parker v. Foote, 
19 Wend. (N. Y.) 309, 1838 ; Doyle v. Lord, 64 N. Y. 432, 
439, 1876; Knabe v. Levelle, 23 N. Y. Suppl. 818, 1892; 
Lindsey v. First Natl. Bk., 115 N. C. 553, 1894; Mullen v. 
Strieker, 19 Ohio St. 135, 1869 ; Hoy v. Sterrett, 2 Watts, (Pa.) 
327, 331, 1834; McDonald v. Bromley, 6 Phila. (Pa.) 302, 
1867 ; Hazlettv. Powell, 30 Pa. 293, 1858; Rennyson's Appeal, 
94 Pa. 147, 1880; Napier v. Bulwinkle, 5 Rich. L. (S. Car.) 
311, 1852; ^T/«w v. Gehrung, 25 Tex. (Sup.) 232, i860; 
Hubbard v. Town, 33 Vt. 295, i860; Powell v. 5ww, 5 W. 
Va. 1, 1 87 1 ; though it was adopted in a few early cases: U. S. 
v. Appleton, 1 Summ. (U. S.) 492, 1833 ; Clawson v. Primrose, 
4 Del. Ch. 643, 1873; Gerber v. Grabel, 16 111. 217, 1854; 
Manier v. Myers, 4 B. Mon. (Ky.) 514, 1844; Taylor v. 
Boulware, 35 La. An. 469, 1883; Story v. Odin, 12 Mass. 
157, 1815 ; Robeson v. Pittenger, 2 N. J. Eq. 57, 1838; Lamp- 
man v. .M'/Af, 21 N. Y. 505, 511, i860 ; McCready v. Thomson, 
Dudley, (S. Car.) 131, 1837; Berkeley v. Smith, 27 Gratt. 
(Va.) 892, 1876. 

Accordingly, it is the general rule that, no matter what his 
motive, whether for his own benefit, or out of pure malice to 
his neighbor, one may erect any structure he pleases on his 
own land, though it obstructs the light coming to his neigh- 
bor's windows, and renders the latter's house uninhabitable : 
Western Granite & Marble Co. v. Knickerbocker, 103 Cal. m, 
1894; Lapere v. Luckey, 23 Kan. 534, 1880; Triplett v. 
Jackson, (Kan.) 48 Pac. Rep. 931, 1897; Letts v. Kessler, 
54 Ohio St. 73, 1896, reversing 7 Ohio Cir. Ct. 108, 1892. 
But the courts of Michigan hold, with better justice, that 
such an erection, if malicious, will be enjoined, not on the 
ground of interference with any right of light and air, but on 
the ground that it is a nuisance : Burke v. Smith, 69 Mich. 
380, 1888; Flaherty \. Moran, 81 Mich. 52, 1890; Kirkwood 
v. Finegan, 95 Mich. 543, 1893. 

Such an erection will be enjoined, however, if it is on the 
division line ; for it then interferes with the plaintiff's rights : 
Western Granite & Marble Co. v. Knickerbocker, 103 Cal. 1 1 1, 
1894; Peck v. Roe, (Mich.) 67 N. W. Rep. 1080, 1896; 
contra, Triplett v. Jackson, (Kan.) 48 Pac. Rep. 931, 1897 ; 
and a fortiori, it will be enjoined, if it is on the land of the 
plaintiff: Sankey v. St. Mary's Female Academy, 8 Mont. 265, 
1889. 



PROGRESS OF THE LAW. 507 

An agreement by an attorney at law to undertake the 
conduct of a litigation on his own account, to pay the costs 
Attorney and an ^ expenses thereof, and to receive as his 
client, compensation a portion of the proceeds of the 
champerty thing recovered, is champertous and void : Peck v. 
Heurich, (Supreme Court of the United States,) 17 Sup. Ct. 
Rep. 927. 

In a case recently decided by the Supreme Court of Missis- 
sippi, Carson v. Vicksburg Bank, 22 So. Rep. 1, a member of 

Beneficial a beneficial association, (the Knights of Pythias,) 
Association, surrendered his certificate of membership, in which 

insurance, hi s w jf e was named as beneficiary, and took out 
another, ostensibly for the benefit of a brother 
knight, which he could do under the laws of the order, but 
really for the benefit of a creditor, which he could not do. 
On the death of the assured, the creditor brought suit to 
determine the application of the proceeds of the certificate ; 
and the court held that the wife could not claim under the 
former certificate, as it had been cancelled by the surrender, 
but that the person named as beneficiary was a naked trustee 
for the wife and children of the assured, who were therefore 
entitled to the fund. 

The same court has lately held, that when a mutual benefit 

association pays the amount of a certificate of insurance to a 

bank, leaving the court to determine who is the 

Change of rightful claimant of the fund, it thereby waives a 

Beneficiary ° ' J , 

iailure of the member assured to change the bene- 
ficiary in the words provided by the rules of the order ; and 
that consequently, when a member of such an order, intending 
to change the beneficiary, wrote the name of the new beneficiary 
in a book belonging to his agent, and, owing to physical 
inability, wrote nothing further, but gave full verbal instructions 
to him, the certificate not being indorsed because it was then 
in possession of the lodge, it would be treated in equity as a 
complete change in the beneficiary, though not made in 
accordance with the rules of the lodge: Hall v. Allen, 22 So. 
Rep. 4. 

A member of a railroad relief association, who has been 
injured and taken to the hospital of the association, for medical 

treatment, pursuant to its constitution and by-laws, 
^*' m " e b r y cannot, nor can his personal representatives, recover 

for injuries or death due to neglect or maltreatment 
while in the hospital : Martin v. Northern Pacific Beneficial 
Assn., (Supreme Court of Minnesota,) 71 N. W. Rep. 701. 



508 PROGRESS OF THE LAW. 

In a recent case before Romer, J., of the Chancery Division, 

Raffety v. Schofield, [1897] 1 Ch. 937, it was stipulated in a 

building agreement that the defendant should 

Building . • 1 -i i- . 

Agreement, erect certain buildings and carry out certain 

Landlord and works on the plaintiff's land, within a specified 

Tenant, time, and should " forthwith proceed " with and 

Option to ' Y 

Purchase, complete the works, when a lease for ninety-nine 
Breach of years was to be granted to him. The agreement 
provided that if the defendant did not perform the 
several stipulations therein contained, the plaintiff might by 
notice in writing determine the agreement and re-enter, and 
also contained an option to the defendant to purchase the 
freehold. The plaintiff, becoming dissatisfied with the slow 
progress made by the defendant, gave him notice to determine 
the agreement; but the defendant, having previously given 
notice to the plaintiff of his intention to exercise the option to 
purchase, declined to surrender possession. The plaintiff then 
brought suit to restrain the defendant from trespassing on or 
interfering with the plaintiff's possession of the land. The 
trial judge held that, on the evidence, the defendant had 
made default in not " forthwith proceeding " to carry out the 
stipulations of the agreement, but that as there was no condi- 
tion precedent that the defendant should not have committed 
any breach of the conditions contained in the building agree- 
ment, the option to purchase was well exercised, and a bind- 
ing contract was thereby made for the sale and purchase of the 
property ; that the determination of the leasing part of the 
building agreement by the notice given to the defendant for 
breach of its conditions did not destroy or affect the contract 
for sale created by the exercise of the option to purchase ; 
and that the plaintiff's action must therefore be dismissed. 



The Supreme Court of the United States has lately held, 

that the fourth section of the interstate commerce act, which 

carriers, prohibits a greater charge for a shorter than for a 

interstate longer haul over the same line in the same direc- 

commerce t j ori) applies, in respect of railroad transportation, 

Long and onr y to the carriage by rail ; and when the prop- 

short Haul, erty has been discharged from the company's 

Delivery cars at ^ pi ace f destination, without any 

greater charge for the shorter haul, the obligations of the 

company under that section are fulfilled, and it is no violation 

thereof for the company to furnish free cartage to the stores 

or business houses of the consignees, though by so doing the 



PROGRESS OF THE LAW. 509 

total cost of delivery for the shorter haul is made greater 
than that for the longer : Interstate Commerce Commission v. 
Detroit, G. H. & M. Ry. Co., 17 Sup. Ct. Rep. 986, affirming 
74 Fed. Rep. 803. 



The Supreme Court of Pennsylvania has recently ruled, 
collateral that though lands in another state are subject 

inheritance to fa e collateral inheritance tax imposed by the 
Devise of l aws °f the testator's domicile, if converted by 
Land in the will at the time of his death, they will not 

■ F . or f,'^? be so subject, when a time in the future is speci- 

Jurisdictlon, iir.ii {■ 

Equitable ned tor the sale of the lands, or when the direc- 
Conversion tion to sell is merely permissive : In re Handle/ s 
Estate, 37 Atl. Rep. 587. 



According to a late decision of the Supreme Court of Mis- 
sissippi, an agreement between several fire insurance com- 
panies to delegate to an association of persons 

Conspiracy, r , ° ., . r , 

Trust and the power to prescribe premium rates, and to 
combine, abide by the rates so fixed, is a " trust and com- 

complies bine >" within Code Miss - l8 9 2 > § 4437, sub-d. g., 
defining a trust and combine as an agreement 
between several persons or corporations to place the control 
" of business," to any extent, "in the power of trustees, by 
whatever name called : " American Fire Ins. Co. v. State, 22 
So. Rep. 99. See Beechley v. Mulville, (Iowa,) 70 N. W. Rep. 
107, 1897; 36 Am. L. Reg. & Rev. (N. S.) 255. 



The Supreme Court of Arkansas has upheld a statute, 

(Act. Ark. March 25, 1889,) which provides that "whenever 

Consttt - an y cor P orat ' on or person engaged in the business 

tionai Law, of operating or constructing any railroad or rail- 

Equai road bridge, shall discharge, with or without 

Rau^oads' cause . or refuse to further employ, any servant or 

Non-payment employe thereof, the unpaid wages of each ser- 

of Employes, van j- or employe then earned at the contract rate, 

y without abatement or deduction, shall be and 

become due and payable, on the day of such discharge or 

refusal to longer employ, and if the same be not paid on such 

day, then, as a penalty for such non-payment, the wages of 

such servant or employe shall continue at the same rate until 

paid : provided, such wages shall not continue more than sixty 

days, unless an action therefor shall be commenced within 

that time ; " refusing to declare it unconstitutional, on the 

ground that the damages allowed as a penalty for non-pay- 



510 PROGRESS OF THE LAW. 

ment were unreasonable or excessive, or that it denied the 
"equal protection of the laws," within the meaning of the 
Fourteenth Amendment, to the particular class of corpora- 
tions to which it applied : St. Louis, I. M. & S. Ry. Co. v. 
Paul, 40 S. W. Rep. 705. 

The Circuit Court for the District of Indiana has recently 
ruled, that in an action to recover the penalty for violation of 

Contract the contract labor laws, a declaration is insuffi- 
Labor Laws, cient, if it fails to show the character of the labor 

rVco"^ which the immigrant was to perform, or, at least 

Penalty, in substance, the terms of the contract under 
Declaration w hich he came to this country ; and also if it fails 
to allege definitely that he actually came here pursuant to the 
contract, or to set forth the acts done by the defendant to 
assist or procure his immigration : United States v. Gay, 80 
Fed. Rep. 254. 



In an action by a passenger against two railroad companies 
for injuries caused by a collision between their trains, neither 
- j. ,.. „ defendant is entitled to judgment over against 

Contribution, , . J .=> , . *> . 

joint Tort- the other, in any event, since the plaintiff is 

feasors, entitled to judgment against either defendant 

Companies only on showing that its negligence contributed to 

the accident ; and, if the defendants were jointly 

negligent, there can be no contribution between them, since 

each was an independent agent : Missouri, K. & T. Ry. Co. v. 

Vance, (Court of Civil Appeals of Texas,) 41 S. W. Rep. 167. 



The Supreme Court of Nevada has re-enunciated several 
principles of corporation law, which are of frequent applica- 

corporation,, ti ° n . *■ e -> (0 that the president of a corpora- 
Meetings, tion cannot adjourn a meeting of the stock- 
Adjournment, holders without day, against their will ; (2) That 
if he attempts to do so, and refuses to preside or 
to permit the meeting to be continued in the office of the 
company, the stockholders may adjourn, without him, to 
another room, and there hold their meeting; (3) That at a 
stockholders' meeting, the right to determine the validity and 
ownership of stock, and the right to vote thereon, is not vested 
in the president alone ; (4) That stockholders may transact at 
an adjourned meeting any business that might have lawfully 
been transacted at the original meeting ; and (5) That the 
stockholders may elect directors when the shares of stock 
stand on the books of the company in the name of trustees, 
without the names of the cestuis que trust being indicated, 



PROGRESS OF THE LAW. 51 1 

though it is provided by statute that the names of the cestuis 
que trust of stock shall be placed upon the book of the cor- 
poration : State v. Croran, 49 Pac. Rep. 41. 

In a case recently before the Supreme Court of Wisconsin, 
McElroy v. Minnesota Percheron Horse Co., 71 N. W. Rep. 
one-man 652, it appeared that the president of a corpora- 
Company, tion owned all the stock except six shares kept in 
Acts of (.fog nam es of officers to render them eligible to 
office. The board of directors consisted of him- 
self, his relatives, and one employe. He had managed the 
corporate affairs for five years without any objection by the 
stockholders or directors, and during this time the only meet- 
ing held was for the purpose of electing new directors in the 
place of others who had resigned. The president had also 
for two years been negotiating a sale of the property of the 
corporation. Under these circumstances it was held that a 
contract for the sale of all the assets of the corporation, con- 
sisting of real estate, made by the president alone, was binding 
on the corporation, since all the powers of a corporation, vested 
solely in the board of directors, may be conferred upon the 
president or other officers by implication arising from the way 
in which the corporation has directed its affairs, or suffered 
them to be conducted. 



According to the Supreme Court of Pennsylvania, a non- 
Death by resident alien is not entitled to the benefit of the 
wrongful Act, Act of April 26, 1855, P. L. 309, which gives a 
NOI, AH Sldent "S^t of action to certain members of the family of 
one whose death is caused by the wrongful act 
of another: Dent v. Penna. R. R. Co., 37 Atl. Rep. 558. 



The Supreme Court of Nevada has recently made havoc of 
the ballots cast at an election, holding illegal the following : 
Elections, those marked with a cross in the blank space for 
Ballots, presidential electors under the words " Vote for 
Marking three," and not opposite the name of any. candi- 
date ; those marked with a cross after the names of presiden- 
tial electors, placed in a square made by the voter ; those 
marked with a cross after the name of an officer to be elected 
for another township ; those marked with a cross made 
with a purple instead of a black pencil ; those disfigured by a 
partially erased cross; those with the word •'canceled" 
written on the back thereof with ink ; those marked with a 



5 1 2 PROGRESS OF THE LAW. 

mark more like a spider than anything else; those marked 
with three lines forming a star; those marked with crosses 
forming a star ; those marked with crosses beneath the names 
of the presidential and vice-presidential candidates ; those 
marked with a cross in a vacant square not opposite the 
name of any candidate ; and those marked with a cross 
between the names of two candidates, so that it was impossible 
to determine for which the voter intended to vote; but 
graciously permitted those which bore an irregular pencil 
mark, clearly made by accident, to be counted. It also 
held that as the ballot law provided for a perforated line 
from the top to the bottom of the ballot, that the number on 
the ballot should be the same as on the corresponding stub, 
that the ballots should be bound in stub-books, and that the 
ballot officer should detach the slip from the ticket, the 
failure of the election officer to detach the stub bearing the 
number of the ballot, and the voting of the ticket with the 
stub attached, rendered the ballot void, on the ground that : 
" It was equally the duty of the voter to know the stub was 
detached, that the ballot bore the water-mark, and had 
attached thereto the strip on the right-hand side bearing the 
number. He had the means of knowing these facts, and 
should be held to exercise some intelligence and some dili- 
gence in casting his ballot. When he blindly accepts a ballot 
from an election officer bearing marks that will destroy the 
secrecy of the ballot, he should be held to know that fact : " 
Sweeney v. Hjul, 48 Pac. Rep. 1036. 

The Court of Civil Appeals of Texas has very sensibly 
ruled that when a ballot has upon it the name of an individual, 
but does not disclose the office voted for, and it 
appears that he was a candidate for the office of 
alderman and no other, and that no one else of the same name 
was a candidate for any office at that election, the ballot will 
be construed as a vote for that person for alderman : State v. 
Mahncke, 41 S. W. Rep. 185. 



According to a late decision of the Court of Appeals of 
New York, the owner of an elevator for passengers is not 
subject, so far at least as any part of the plant 
?n|ury°to other than that by which the elevator is moved 
Passenger, and controlled is concerned, to the rules that 
Liability of apply to a railroad company in respect of its road- 
bed, engines, etc., and is not held bound to exer- 
cise the utmost care and diligence, and liable for the slightest 



PROGRESS OF THE LAW. 5 I 3 

neglect ; but if he exercises due diligence to provide a safe and 
suitable car and other appliances for the operation of the 
elevator and the accommodation of passengers, he is not liable 
for an accident which could not with reasonable diligence have 
been foreseen and provided against : McGrell v. Buffalo Office 
& Bdg. Co., 47 N. E. Rep. 305, reversing 35 N. Y. Suppl. 
599- 



While a witness may ordinarily testify to a conversation had 

by him through a telephone with another person, though he is 

Evidence not a ^ e to identify the voice of the person respond- 

Teiephone ing, yet, when the latter is to be charged with 

Message notice of the conversation, (as when it is sought to 
charge an indorser of a promissory note with liability by a 
notice of dishonor thus communicated,) it must clearly appear 
that the one who answered was the one who is to be charged ; 
and therefore, when the only evidence of the giving of the 
notice aforesaid was the testimony of a witness that he called 
up the office of the indorser, and did not know whether or 
not it was the indorser or his bookkeeper, or either of them, 
that answered, it was held that the sustaining of a demurrer 
to this testimony, on the ground that it furnished no evidence 
that notice of dishonor was given, was not error: C. C. 
Thompson & Walkup Co. v. Appleby, (Court of Appeals of 
Kansas, Southern Department, C. D.,) 48 Pac. Rep. 933. 

Evidence as to a conversation carried on over a telephone 
may be given by one who took part in it, if the other party 
is sufficiently identified : e.g., when the witness testifies that 
he knew and distinguished the voice of the person at the 
other end of the telephone : Stepp v. State, 3 1 Tex. Cr. Rep. 
349, 1894. So, testimony that the one who spoke to the 
witness gave his name, and that the witness went immediately 
to the office of the person named, who admitted the conversa- 
tion just had by telephone, sufficiently identifies the one who 
spoke to the witness : William Deering & Co. v. Shumpik, 
(Minn.,) 69 N. W. Rep. 1088, 1897. 

Further, one who heard the conversation, or only one side 
of it, can testify to what he heard, if the person at the other 
end of the instrument is identified ; and consequently, when it 
is admitted that the conversation was carried on between, 
plaintiff and defendant, one who heard one side of it can 
testify, though he did not know of his own knowledge with 
whom the conversation was held : Miles v. Andrews, 153 111. 
262, 1895. 



514 PROGRESS OF THE LAW. 

A false letter, purporting to have been written by another 
with intent to influence the collector of customs to reject the 
application of a Chinese subject to land, is not an 
instrument which could defraud, within Penal 
Code Cal., § 470, defining forgery with such particularity 
that, as the annotator says, " it was evidently intended to 
cover every case that could arise : " People v. Wong Sam, 
(Supreme Court of California,) 48 Pac. Rep. 972. 



The fact that an insolvent's father, to whom he had trans- 

fered property in payment of a debt, organized a corporation 

several months afterwards, and employed the 

conveyance insolvent therein at a moderate salary, does not 

show a secret understanding in the transfer, when 

the father is wealthy and liberal, and all the parties to the 

transfer testify that it involved nothing but what appeared on 

its face : Henderson v. Perryman, (Supreme Court of Alabama,) 

22 So. Rep. 24. 

The Supreme Court of the United States has recently 

decided, that a tug engaged in towing barges from one port 

aenerai to anotner is n °t bound up with them into a single 

Average, maritime adventure, so as to be subject to the law 

Tug of general average, even though her compensation 

for the towage is measured by the freight carried by the 

barges ; and consequently the act of the tug in cutting loose 

from them, and allowing them to go ashore, in order to save 

herself from a like fate, will not subject her to a general average 

contribution: The J. P. Donaldson, 17 Sup. Ct. Rep. 951, 

reversing 21 Fed. Rep. 671. 

When a criminal prosecution is threatened under color of 

an invalid statute for the purpose of compelling 

"Against" tne relinquishment of a property right, the remedy 

Criminal in equity is available, and a preliminary injunction 

Proceedings m ay properly issue : Central Trust Co. of N. Y.v. 

Citizen's St. Ry. Co., (Circuit Court, D. Indiana,) 80 Fed. 

Rep. 218. 

Apprentice workmen, who have allowed their wages to 

accumulate upon an agreement that they should 

statutory' De paid at the end of their apprenticeship, have 

Preference, no more extensive right to a preference upon the 

workmen, insolvency of the corporation by which they are 

Apprentices .,11 1 • 1 \ 

employed, than have any other unpaid workmen 
in its employ, unless such a right is expressly conferred by 



PROGRESS OF THE LAW. 5 I 5 

statute : Mingin v. Alva Glass Mfg. Co., (Court of Chancery 
of New Jersey, Grey, V. C.,) 37 Atl. Rep. 450. 



The Supreme Court of Pennsylvania has recently held that 
insurance a P ouc y which insures against loss caused by 
Accidental " accidental damage to or destruction of" prop- 
Damage, ertv « excepting only damage or destruction by 

Loss by Flood - " r ul • » l J .. a J 

fire or lightning, covers a loss due to a flood : 
Hey v. Guarantors' Liability Indemnity Co. of Pennsylvania, 
37 Atl. Rep. 402. 

The Court of Appeals of Kentucky has lately ruled (1) That 

death caused by the sting of an insect is effected through 

Accident " external, violent and accidental " means, within 

insurance, the meaning of an accident insurance policy ; 

Death from / 2 ) That the sting of an insect is the proximate 

Bite of Insect v ' e , . , & ... c ul J • • 

cause of death resulting from blood-poisoning 
caused by the sting ; and (3) That a death from blood-poison- 
ing caused by the sting of an insect is not the result of 
" poison in any form or manner," or of " contact with poison- 
ous substances," within the meaning of those terms in an 
accident insurance policy : Omberg v. United States Mut. 
Assn., 40 S. W. Rep. 909. 

The Supreme Court of New York, Appellate Division, First 
Department, has recently passed upon several questions arising 
Credit out of a credit insurance contract, holding (1) That 
insurance, under a credit insurance policy covering loss sus- 
Loss,' tained by reason of the insolvency of debtors 
Computation owing the insured for merchandise sold between 
September 1, 1892, and September 1, 1893, in excess of 1^ 
per cent, on the total gross sales made during that period 
" subject to the terms and conditions provided below and 
attached hereto," to which was attached a rider providing that 
it should cover all losses on sales made within one year pre- 
ceding August 31, 1892, except such losses as the insured had 
notice of before August 31, 1892, or whce an extension had 
been granted to the debtor, but providing for no deduction 
from the gross sales made during that year, there should be 
deducted, in computing the amount of loss, only 1 ^ per cent, 
of the amount of sales made in the year beginning September 
1, 1892 ; (2) That a conveyance by a debtor to a trustee for 
distribution of the proceeds among specified creditors, reciting 
in the conveyance that such goods are " only a part of his 



5l6 PROGRESS OF THE LAW. 

property," is not a " general assignment for the benefit of 
creditors," within a credit insurance policy insuring against any 
" loss sustained by reason of the insolvency of debtors " of the 
insured, and defining such losses as those arising on sales by 
the insured to persons who have made a general assignment 
for the benefit of their creditors ; and (3) That when a policy of 
insurance against loss by reason of the insolvency of the debtors 
of the insured limits the liability of the insurer to a specified 
sum on any one loss, and provides in one clause that, when 
only part of a loss is covered by the policy, " the proportionate 
part of everything realized or secured by the indemnified shall 
be credited to so much of the loss as is covered," and in another 
that all payments and securities should be deducted before de- 
termining the insurer's percentage of loss, the former provision 
is not affected by the latter, which merely provides for the 
deduction of payments and securities without specifying the 
mode thereof: Goodman v. Mercantile Credit Guarantee Co. 
ofN. Y., 45 N. Y. Suppl. 508. 

In the opinion of the Court of Errors and Appeals of New 

Jersey, a policy-holder in a credit insurance company, (which 

insolvency of i nsures traders against losses occurring through 

insurer, the insolvency of their customers,) cannot recover 

Subsequent f or l osse s sustained after the company becomes 

insolvent, whether the sales which led to the loss 

were made before or after that date, but can only recover the 

unearned premium, when there is no reserved value to the 

policy, nor any method of reinsuring : Gray v. Reynolds, 

37 Atl. Rep. 461. 

The Supreme Court of Minnesota has recently declared that 
it is a rule of fidelity insurance, (which amounts to a continu- 

Fideiity m S suretyship for the faithful discharge of his 
insurance, duties by a servant,) that if the master discovers 

Notice of tri at j-^g servant has been guilty of dishonesty in 

s wi.Bs y ^ e course of the service, and thereafter continues 
him in that service, without notice to and the assent of the 
surety, express or implied, to that course, the latter will not 
be liable for any loss arising from the dishonesty of the ser- 
vant during his subsequent service ; but that this rule has no 
application to mere breaches of duty or contract obligations on 
the part of the servant, not involving dishonesty on his part or 
fraud or concealment on the part of the master : Lancashire 
Ins. Co. v. Callahan, 71 N. W. Rep. 261. 



PROGRESS OF THE LAW. 517 

The Supreme Court of the United States has at last settled 
the long disputed question as to the power of the Interstate 
Commerce Commission to fix rates for carriage 
commerce by railroad, holding that the powers of the com- 
Commission, mission are judicial and administrative, but not 
Fixing *Rates legislative, and that, after having judicially de- 
clared an existing rate of tariff charged by a car- 
rier to be unreasonable, it has no power to prescribe a rate to 
control in the future, and to enforce its order by proceedings 
in mandamus : Interstate Commerce Commission v. Cincinnati, 
N. 0. & T. P. Ry. Co., 17 Sup. Ct. Rep. 896. Mr. Justice 
Harlan dissented. 

The Circuit Court for the Western District of Virginia has 

lately held, that when an action is pending against a common 

Judgment, carrier to recover for the loss of a shipment of 

Misconduct of cigars, and the quality and value of the cigars are 

R^iTf ' n ' ssue > tne fact that the plaintiff conducted three 

jurors to his agent's place of business, and gave 

them a box of cigars, is sufficient ground for enjoining the 

enforcement of the judgment : Piatt v. ThreadgUl, 80 Fed. 

Rep. 192. 

A tenant of the third and fourth floors of a building, whose 
water supply is cut off, furniture injured by dust and lime, 
Landlord and and in gress and egress interfered with, causing 

Tenant, damage, by the landlord's repairing the second 
Quiet floor, may recover from the landlord for breach 

Enjoyment c ^ c • • ■ r 

01 covenant of quiet enjoyment, irrespective of 
his negligence : McDowell v. Hyman, (Supreme Court of Cali- 
fornia,) 48 Pac. Rep. 984. 



The Vice-Chancellor for Ireland has recently decided, that 

brick-clay, lying about fifteen inches beneath the surface, was 

Lease, included in a reservation in a lease, reserving all 

Reservation mines of lead, ore, tin and other minerals, coal, 

of Mines and ano > a jj quarries of marble, freestone, limestone, 

Minerals, , . ., \. , . ' . 

Ejusdem and building stones, slates, and other quarries, 
Generis, whatsoever, (save so much as might be used for 
Brick-ciay building or improvement on the premises,) as also 
all marl, fuller's earth, . . . bogs, turf, mosses, and turbaries, 
and giving the landlord power to bore, search for, dig, and 
carry away bog, timber, mines, minerals, marble, coal, freestone, 
marl, building stone, limestone and slate, fuller's earth, . . . 
and turf: Shaftesbury v. Wallace, [1897] 1 I. R. 381. 



5 1 8 PROGRESS OF THE LAW. 

In Youmans v. Smith, (Court of Appeals of New York,) 
47 N. E. Rep. 265, the counsel in a disbarment proceeding 

Libel, prepared a list of questions to be asked witnesses, 
communicl- which might in certain contingencies be competent 

tions and material, and caused these questions to be 
printed for submission to the witnesses in preparation for the 
hearing. The respondent sued the printer for libel, and the 
jury found for him, and this judgment was affirmed by the 
general term: 25 N. Y. Suppl. 11 30. But the Court of 
Appeals reversed the latter decision, holding that although a 
printer who prints a libel and delivers the printed copies to 
the author, knowing that he intends to submit them to others 
to read, becomes liable as a publisher of the libel from the 
moment that any third person reads it, provided the words 
are not privileged, yet in the case in hand the questions, 
though they contained matter defamatory of the plaintiff, were 
privileged in the hands of the counsel and his agents, at least 
while used solely for the purpose for which they were pre- 
pared; and that the printer was, therefore, not liable. 



In Loiseau v. State, (Supreme Court of Alabama,) 22 So. 
Rep. 138, several persons each dropped nickels into a slot 
machine owned by the defendant, agreeing among 
5iot°Machi'ne themselves that the one after whose play the ma- 
chine should indicate the highest card hand should 
have all the cigars that the nickels purchased. The defendant 
furnished from his stock a nickel cigar for each nickel put into 
the machine, and delivered them to the person who obtained 
the best hand. Upon these facts it was held, that the machine, 
when put to such a use, was a lottery, which, under Const. 
Ala. art. 4, § 26, the general assembly had no power to 
legalize. 

Mandamus will lie to compel the judge of an inferior 

Mandamus, court to reinstate a criminal cause, which, for 

Reinstatement reasons insufficient in law, he has discon- 

ofsuit tinued : Ex parte State, (Supreme Court of 

Alabama,) 22 So. Rep. 115. 



According to a recent decision of the Court of Civil 
Master and Appeals of Texas, the operator of an elevator in 

servant, a hotel is a fellow-servant of a chambermaid who 
Feiiow-servant r \fe s in the elevator in the discharge of her 
duties : Oriental Investment Co. v. Sline, 41 S. W. Rep. 130. 



PROGRESS OF THE LAW. 5I9 

The doctrine, that when a municipal incorporation is 
wholly void ab initio, as being created without warrant of 
law, it can create no debts and can incur no 
corporations, liabilities, does not apply to the case of an irre- 
irreguiar gularly organized corporation, which has ob- 
^fs^Tiution"' ta ' ne< ^» by compliance with a general law author- 
Reorganization, izing the formation of municipal corporations, an 
Liability for organization valid as against everybody except 
the state acting by direct proceedings. Such an 
organization is merely voidable, and, if the state refrains from 
acting until after debts are created, the obligations are not 
destroyed by a dissolution of the corporation, but it will be 
presumed that the state intended that they should be devolved 
upon the new corporation which succeeded, by operation of 
law, to the property and improvements of its predecessor : 
Shapleigh v. City of San Antonio, (Supreme Court of the 
United States,) 17 Sup. Ct. Rep. 957. 

The Supreme Court of Montana has lately held that the 

provisions of Comp. Stat. Mont. 1887, § 345, forbidding a 

Contracts, ma yor to be interested directly or indirectly in 

interest of the profits of any city contracts entered into 

officers while he is in office, do not apply to the case of a 
mayor who was not interested in a contract made with the 
city, but who agreed, after the contract was accepted, and 
filed with the proper official, to take stock in a corporation 
which succeeded to the rights of the original contractors : 
State v. Mayor, etc., of City of Great Falls, 49 Pac. Rep. 15. 

Under a charter which empowers a municipal corporation 

to regulate the carrying on of any dangerous business, to 

Ordinance ma ke provision for the inspection of steam boilers, 

Validity, to license engineers using such boilers, and to 
Engineers of p rov jd e f or the election or appointment of officers 
required by the charter or authorized by ordinance, 
the corporation has power, as a regulation for the public 
safety, to pass an ordinance prohibiting the owners of steam 
boilers from employing as engineer any person who has not 
first obtained a permit from the boiler inspector, or a license 
from the board of engineers, and providing for the appoint- 
ment of such officers and for the punishment of a violation of 
the ordinance : City of St. Louis v. F. Meyrose Lamp Mfg. Co., 
(Supreme Court of Missouri, Division No. 2,) 41 S. W. Rep. 
244. 

In the opinion of the Court of Chancery of New Jersey, an 
abutting owner has the right to run electric wires above the 



520 PROGRESS OF THE LAW. 

streets street for the purpose of connecting buildings on 

Rights of his property with the wires alread yon polesin the 

Abutting public streets lawfully erected for the purpose of 

supplying lights, without asking permission of the 

city ; and the latter cannot enjoin the running of such wires 

as a nuisance : Mayor, etc., of Borough of Brigantinev. Holland 

Trust Co., 37 Atl. Rep. 438. 

In an action by the next of kin to recover for the death of 
one killed by a mob, as authorized by the law of Kansas, 
Actio to (Gen. Stat. Kans. 1889, §§ 2590, 2591,) which 
Death caused makes incorporated cities and towns liable for 
by Mob, damages that accrue within the corporate limits in 
Evwence consequence of the action of mobs, the reputation 
and conduct of the deceased may be given in evi- 
dence in mitigation of damages, under the second section 
of the act, which provides that "in all actions under the 
preceding section the character, use or manner of occupancy of 
the property lost and destroyed, and the reputation and con- 
duct of the person injured, may be given in evidence in miti- 
gation of damages ; " and such testimony is not confined to 
the general reputation of the deceased, but the defendant may 
show any misconduct or crime, committed within a reason- 
able time prior to the killing, which may have influenced the 
mob, or which would affect the value of his life to the next of 
kin : Adams v. City of Salina, (Supreme Court of Kansas,) 48 
Pac. Rep. 918. 

Quare, whether the defendant could give in evidence, under 
this ruling, prior declarations of the plaintiff that he wished 
the deceased were dead ? 



According to a late decision of the Supreme Court of New 
York, Appellate Division, Second Department, two persons, 
Negligence, w * tn a wa g° n > engaged in moving furniture, are 
imputable, engaged in a joint venture, and the negligence of 
joint venture one j n ^ ne management of the wagon is imputable 
to the other : Schron v. Staten Island Electric R. R. Co., 45 
N. Y. Suppl. 124. 

In a case recently decided by the Court of Appeals of 

Ireland, Murphy v. Great Northern Ry. Co., [1897] 2 I. R. 

301, a railway porter, in the employ of the de- 

company, fendant company, wheeled a barrow with luggage 

Master and thereon to a side entrance to the defendant's 

servant station at Derry, and left it standing close to the 

top of the steps leading down to the public foot-path outside. 

Some "badge-porters," (men who carried luggage from the 



PROGRESS OF THE LAW. 521 

station to the passenger's destination,) licensed by the cor- 
poration of Deny, but not employed by or subject to the 
control of the defendant company, rushed up the steps — as 
was usual when the constable whose duty it was to keep 
them off the platform and to maintain order among them was 
absent, as he was on this occasion — and in a struggle for the 
luggage, upset the barrow and the trunks on it, which tumbled 
down the steps and injured the plaintiff, a passenger, who was 
waiting on the footpath below for his luggage to be brought 
out. On these facts it was held that the plaintiff was not en- 
titled to recover, since he had sued the defendant for the 
negligence of its servant, and had at first attempted to prove 
that the porter had himself wheeled the barrow over the steps. 
This case furnishes an excellent instance of the evil results 
of trying a case on a wrong theory. If the plaintiff had 
charged that the company was negligent in permitting the 
" badge-porters " to come on its premises and wrangle over 
the luggage, it is difficult to see how it could have defended 
successfully. 

The Supreme Court of Missouri, (Division No. i,) in 
Kingman v. Waugh, 40 S. W. Rep. 884, has held the 
Newspapers, St. Louis Daily Record to be a " daily newspaper," 
Legal Notices within the meaning of the statutes relating to the 
publication of legal notices. That paper was described as 
follows : The St. Louis Daily Record " is printed and pub- 
lished in the English language in the city of St. Louis, Mis- 
souri, every day except Sunday ; that said publication claims 
on the face of it to be a newspaper devoted to the courts, 
financial, real estate, building, and business interests of St. 
Louis ; that it is delivered each week-day morning, by carrier, 
in the city of St. Louis, and in outlying districts of the city 
by mail ; that the subscription price is printed plainly upon 
the paper, and is not nominal, but is adhered to ; that it circu- 
lates throughout the city of St. Louis, and is not confined to 
any particular trade, or calling, or business interest. It circu- 
lates generally among the lawyers, real-estate dealers, bankers, 
brokers, money lenders, bond and stock dealers, real-estate 
speculators and other property-holders. It also circulates 
extensively among material-men and builders, and those 
interested in the construction of buildings and the improve- 
ment of real estate. It is taken to a considerable extent by 
merchants, grocers, packing houses, provision dealers, wine 
and liquor dealers, brewers, dry-goods merchants and com- 
mission merchants of the city of St. Louis. It contains daily 



522 PROGRESS OF THE LAW. 

what is claimed to be a complete list of all conveyances of 
real estate within the city of St. Louis, and all deeds of trust, 
releases of deeds of trust, chattel mortgages, permits issued for 
improvements upon real estate, mechanics' liens, judgments 
and transcripts affecting real estate, which occurred the day 
previous to the publication ; notices of all real estate to be sold 
by trustees under powers contained in deeds of trust ; notices 
of sales of real estate by administrators, executors, commis- 
sioners, or by other judicial processes, both in the city of 
St. Louis and in St. Louis county. It contains a brief 
minute of the proceedings of the Circuit Court of the city of 
St. Louis, brief notices of all suits filed in said court, and the 
setting of such cases for trial. It also contains quotations of 
all principal stocks and bonds on the market in the city of 
St. Louis, notices of assignments, bills of sale, notices of busi- 
ness failures and notices of corporations formed in St. Louis. It 
also contains brief items of news of a general character. It 
contains a number of commercial advertisements, and the 
advertisements are not confined to any particular trade or 
business. It contains, from time to time, advertisements of a 
legal nature, such as notices of sales of real estate at auction, 
by trustees under deeds of trust, and notices of stockholders' 
meetings." 

" It is a law of business that a manufacturer of any particular 

line of products is also a dealer in that product, and that in 

Partnership, the course of his business he is frequently com- 

scope of pelled by a multitude of orders which is beyond 

impued ' n ' s capacity or by derangement of machinery or 

Authority oi from other causes to become a purchaser of the 

Partner material he manufactures. That when firms do 

so purchase, such purchases are within the scope of their line 

of business cannot successfully be contested." Accordingly, 

such a purchase by one partner binds the firm : Bulkley v. 

Wood & Co., (Superior Court of Pennsylvania,) 4 Pa, Super. 

Ct. 391- 

The pledgor of a note retains an equitable interest therein ; 

and hence, if the pledgee of a note deposited as collateral 

Pledge, security refuses to sue upon it when it becomes 

Rights oi due, a bill will lie by the pledgor to have the note 

Pledgor collected, and the proceeds credited on his debt : 

Baker v.Burkett, (Supreme Court of Mississippi,) 21 So. 

Rep. 970. 



PROGRESS OF THE LAW. 523 

When relied upon to support a defence of false represen- 
Practice, tations, newspaper advertisements, handbills and 
Affidavit printed prospectuses need not always be set out 

of Defence, T , , , . • • \ , . 

setting out in naec verba, (et imagines ;) the rule requiring 

Paper the setting out of papers must have a reasonable 

application : Max Meadows Land & Improvement Co. v. Men- 

dinhall, (Superior Court of Pennsylvania,) 4 Pa. Super. 

Ct. 398. 

A condition upon a cloak-room ticket issued by a railroad 

company that it " will not be responsible for any 

company, package exceeding the value of £10," protects 

cioak-room, the company from liability, not only for the loss 

Exemption Q r an art i c i e deposited in the cloak-room, but also 

from Liability r . . ,.,'.,. 

for damage or injury thereto while in their 

custody: Pratt v. South Eastern Ry. Co., (Queen's Bench 

Division,) [1897] 1 Q. B. 718. 

A judgment against a railroad company for a death occur- 

„ . ring in the operation of the road cannot be re- 

Mortgage, 11 

Priority of garded as a necessary operating expense, and is 
Judgment not entitled to priority of payment over a mort- 
gage upon that ground : New York Security & 
Trust Co. v. Louisville, E. & St. L. C. R. R. Co., (Circuit 
Court, Dist. Indiana,) 79 Fed. Rep. 386 ; though the death 
occurred before the appointment of a receiver: Veatch v. 
American Loan & Trust Co., (Circuit Court of Appeals, 
Eighth Circuit,) 79 Fed. Rep. 471. 



The Court of Errors and Appeals of New Jersey has re- 
cently decided, that the entry of a nolle prosequi, by order of 
Recognizance, court, on motion of the prosecutor, does not dis- 
Discharge, charge from liability the sureties on a recognizance 
Nolle conditioned that the accused will first appear, and 
stand to abide "the order and judgment of the 
court in the premises, and in the second place, will not depart 
the said court without leave," when it appears that he did 
depart the court without leave : Weber v. State, 37 Atl. Rep. 
133- 

The Supreme Court of Illinois has declared that the 
statute creating the state board of health does not give it 

schools, the power to prescribe vaccination as a condition 

vaccination to admission to the public schools, that not being 

expressly mentioned in the act ; and that when the right to 

attend school is given by statute to every child of proper age, 



524 PROGRESS OF THE LAW. 

and there is no express grant of authority to make vaccina- 
tion a condition to attendance, neither boards of health nor 
school boards can require it, if small pox does not exist in 
the community, and there is no reason to apprehend that it is 
approaching the vicinity of the school, or is likely to become 
prevalent there : Potts v. Breen, 47 N. E. Rep. 81, affirming 
60 111. App. 201. 

The Supreme Court of Louisiana has lately held, in accord- 

ancs with the general rule on the subject, that the relationship 

between a parent and child, (in this case a father 

Qualified an d daughter,) makes it his legal and moral duty 

Privilege, to advise her as he thinks best for her welfare, and 

Fa chiid ,nd gi yes rise to a qualified privilege in giving that 

advice ; that this relation and the usual sympathy 

among the friends of both, to whom the father's statements 

are repeated, are such that the issue involved, when those 

statements are relied on as the ground of an action for slander, 

is not whether they were true, but whether the father honestly 

believed them to be true ; and that when these statements are 

in reference to the character of one who sought the daughter 

in marriage, they are not actionable merely because untrue, 

but express malice must be proved : Baysset v. Hire, 22 So. 

Rep. 44. 

An envelope, and a letter which is proved to have been 

statute inclosed in it, are so connected together that the 

of Frauds, envelope may be used to supply the name of one 

Memorandum f t jj e p ar ti e s to the memorandum in writing 

required by the Statute of Frauds : Pearce v. Gardner, (Court 

of Appeal of England,) [1897] 1 Q. B. 688. 



The Supreme Judicial Court of Maine, following what seems 
to be the drift of the Massachusetts cases, has lately held that 
Taxation, the water power created by the erection of a dam, 
water Power being intangible and potential merely, is not an 
element of taxable property, apart from that upon which it 
operates ; and should therefore be estimated in connection 
with the mills which are run by it, and be taxed there, rather 
than with the dam which creates it, and the land covered by 
the water: Union Water Power Co. v. City of Auburn, 37 Atl. 
Rep. 331. 

Emery, J., clearly points out the fallacy in the argument of 
the majority opinion, in a very forcible concurring opinion, in 
which, after showing that the owner of the land may often 



PROGRESS OF THE LAW. 525 

acquire a practical monopoly of the water power of a stream, 
he goes on to say : " This monopoly, thus valuable, is an 
incident of the ownership of the land, and may often be the 
principal element in the value of the land. Large revenues 
may often accrue to the landowner solely from this monopoly. 
This monopoly, this revenue or chance of revenue from it, 
should be included in an estimate of the value of the land. 
The whole value of the land, with all these incidents, is to be 
assessed and taxed in the town in which the land is situated." 
He arrived at the same conclusion as the rest of the court, on 
the ground that the court below had done this. 



In a case before the Supreme Court of Pennsylvania, 
Haverford Loan & Bldg. Assn. of PhUa. v. Dougherty, 37 Atl. 

Tenants in R e p, ijg t a tenant in common obtained a loan, 
Co^tXrtion, S ivin g mortgage security on the entire property, 

Subrogation and at his direction the mortgagee paid out of the 
loan a prior mortgage on the property, both supposing that 
the mortgagor was owner. On discovering the fact that he 
was only co-tenant with others, the mortgagee brought suit 
for subrogation and other equitable relief. The court below 
dismissed the bill; but this decree was reversed by the 
supreme court, which held that the mortgagor was entitled 
to contribution, and to subrogation to the mortgage paid off; 
and that the second mortgagee succeeded to this right of 
subrogation. 



^t>" 



According to a recent decision of the House of Lords, there 

is no fiduciary relation between tenants in common of real 

Purchase of estate, as such ; and one tenant in common of real 

common es t a te cannot impose upon his co-tenant an obliga- 

Mortgage tion of a fiduciary character by leaving the man- 
saie agement of the property in his hands. Accord- 
ingly, one such tenant can purchase the property at a private 
sale by the mortgagees, though he pays only the exact sum 
due in respect of the principal, interest and costs, leaving the 
bulk of the purchase money on the security of the property : 
Kennedy v. DeTrafford, [1897] A. C. 180,' affirming [1896] 
1 Ch. 762. 

But one tenant in common cannot acquire the common 
property, when the sale is in pursuance of a scheme of the 
purchaser to get possession of the land : Van Ormer v. Harley, 
(Iowa,) 71 N. W. Rep. 241. 



526 PROGRESS OF THE LAW. 

It is not actionable for defendant, who sells the same kind 

of goods as plaintiff, to threaten to discharge its employes if 

they trade with plaintiff, and to tell them that 

Liability, their pay checks, made good for merchandise at 

injuring its store, and non-transferable, will not be received 

BuiTness* wnen ^ey have passed through plaintiff's hands, 

though such threats have the result intended, of 

injuring plaintiff in his business : Robison v. Texas Pine Land 

Assn., (Court of Civil Appeals of Texas,) 40 S. W. Rep. 843. 



When the same trade-mark has been appropriately used 
without objection by each of the owners of two separate 
Trade-mark, springs of water having the same medicinal quali- 
infringement, ties, they may jointly maintain an action to 
waters enjoin a third person from using the trade-mark : 
Northcutt v. Turney, (Court of Appeals of Kentucky,) 41 
S. W. Rep. 21. 

Kekewich, J., of the Chancery Division of the Supreme 

Court of Judicature of England, has recently ruled, that the 

principle announced in Reddaway v. Bankam, 

T De d ce"p N trn e ' [ l8 96] A. C. 199, 20 4 , 1896, that " nobody has 
any right to represent his goods as the goods of 
somebody else," has no limit as regards name, origin, honesty 
of manufacture or sale, or otherwise ; and that a trader whose 
goods have acquired a reputation under a particular name can 
restrain the use of that name in any way whatever by a rival 
trader in connection with the latter 's own goods, even though 
that reputation has been acquired by the exertions or enter- 
prise of the rival trader as an importer and vender on behalf 
of the plaintiff: Saxlehner v. Apollinaris Co., [1897] 1 Ch. 
893- 

The Supreme Court of the United States, in four cases, 
American Pub. Co. v. Fisher, 17 Sup. Ct. Rep. 618, reversing 

Trial by IO Utah, 147, and Springfield City v. Thomas, 17 
Jury, Sup. Ct. Rep. 717, reversing 9 Utah, 426, Salt 

Majority j^fo city Brewing Co. v. Fred. W. Wolf Co., 17 
Sup. Ct. Rep. 717, reversing 10 Utah, 179, and 
Salt Lake City v. Tucker, 17 Sup. Ct. Rep. 717, reversing 10 
Utah, 173, and overruling Hess v. White, 9 Utah, 61, 1893, has 
held, that the statute of the territory of Utah, (Comp. L. Utah, 
§ 337 1, as amended by Laws, 1892, p. 46,) which authorizes a 
verdict in all civil cases on the concurrence of nine members of 
the jury, is invalid, because it impairs the common-law right of 



PROGRESS OF THE LAW. 527 

trial by jury secured to litigants by the act of congress ex- 
tending the constitution and laws of the United States over 
that territory, (9 Stat, at Large, 458, § 17,) and by the act 
providing that in territorial courts no party shall be deprived 
of the right of trial by jury in cases cognizable at common 
law, (18 Stat, at Large, 27, c. 80,) and the seventh amend- 
ment to the constitution of the United States. 

This leaves still open the question as to the constitution- 
ality of such a statute when enacted by a state legislature. 



The Supreme Court of Nebraska has applied the familiar 

principle of following trust funds to the case of money stolen 

from a bank by its janitor ; rejecting the doctrine 

Following which holds that property stolen by a mere ser- 

Trust Funds, vant, not entrusted with any fiduciary duties, 

stolen cannot be thus recovered, and declaring it, with 

Property - . 

much reason, to be "indefensible on authority, 
and opposed to the enlightened policy of modern equity 
jurisprudence:" Nebraska Nat. Bk. v. Johnson, 71 N. W. 
Rep. 294. 

The Supreme Court of Appeals of West Virginia, following 

its prior decisions, holds that petroleum oil in place is part 

waste, °f ^e land; and that its wrongful extraction 

Life Tenant, by one lawfully in possession is waste, and 

Petroleum an irreparable injury, which will be enjoined : 

Williamson v. Jones, 27 S. E. Rep. 411. 



When a testator devises and bequeaths his real and personal 

property to his wife, on condition that in no case 

Conditional shall she give or bequeath one cent of said estate 

Bequest, to any member of his family or any relative of her 

^l^nltion" own > ^ e condition is against public policy and 

void, being a restraint upon alienation : Morse v. 

Blood, (Supreme Court of Minnesota,) 71 N. W. Rep. 682. 

When a will gives the estate of the testator in trust for the 
support of his wife and children, during her life, and after her 
win, death to their support, in the discretion of the 
construction, trustees, until they are of age or marry, and, when 
Renunciation a jj the cri jldren arrive at age or marry, to divide 
the estate among the children, and, in the event of no child or 
issue thereof, then to divide the estate among the brothers and 
sisters of the testator, a renunciation by the widow, and her 
election to take against the will, is equivalent to her death, for 



528 PROGRESS OF THE LAW. 

the purposes of distribution : Randall v. Randall, (Court of 
Appeals of Maryland,) 37 Atl. Rep. 209. 



When one who has been adjudged to be insane is offered as 
a witness, the inquiry for the court in the preliminary exami- 
nation is limited to his understanding of the obli- 

Witnesses 

insane Person gations of an oath and ability to comprehend the 
examination as a witness, and, if he can stand this 
test, the effect of his alleged insanity upon his credibility is for 
the jury : Wright v. Southern Express Co., (Circuit Court, 
W. D. Tennessee, N. D.,) 80 Fed. Rep. 85. 

The testimony of an insane person is to be rejected, if it 
appears that his mind is so affected by his disease that his 
testimony is unreliable : Armstrong v. Timmons, 3 Harr. 
(Del.) 342, 1841 ; Livingston v. Kiersted, 10 Johns. (N. Y.) 
362, 1 813 ; Hartford v. Palmer, 16 Johns. (N. Y.) 143, 1819; 
Hoyt v. Adee, 3 Lans. (N. Y.) 173, 1870 ; but if it appears 
that his insanity does not relate to the subject-matter of his 
testimony, and that he can give an intelligible account of the 
transaction in respect of which he is called upon to testify, 
his testimony should be received, its credibility being for the 
jury : Fennel/ v. Teat, 1 C, M. & R. 584, 1834; Reg. v. Hi//, 
5 Cox, Cr. Cas. 259, 185 1 ; District of Columbia x. Armes, 
107 U. S. 519, 1882; Worthington v. Mencer, 96 Ala. 310, 
1 89 1 ; Wa/ker v. State, 97 Ala. 85, 1892 ; Clements v. 
McGinn, (Cal.) 33 Pac. Rep. 920, 1893 ; Holcomb v. Holcomb, 
28 Conn. 177, 1859; Mayor v. Caldwell, 81 Ga. 76, 1888; 
Tucker v. Shaw, 158 111. 326, 1895 ; Dickson v. Waldron, 135 
Ind. 507, 1893; Mead v. Harris, 101 Mich. 585, 1894; 
Peop/ev. N. Y. Hospital, 3 Abb. N. C. (N. Y.) 229, 1876; 
Hand v. Burrows, 23 Hun, (N. Y.) 330, 1880; Coleman's 
Case, 25 Gratt. (Va.) 865, 1874; contra, Lopez v. State, 30 
Tex. App. 487, 1 89 1. 

Ardemus Stewart.